RAINY MARIE GIBSON, En Legis, Principal v. Tip Towing

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-2919
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RAINY MARIE GIBSON, En Legis, Principal,
Appellant
v.
TIP TOWING AND RECOVERY LLC; JASONE DISENSO, President;
JOHN DOE TOW GUY 1; JOHN DOE TOW GUY 2, USDOT 2907494
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 5:23-cv-03677)
District Judge: Honorable Edward G. Smith
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 16, 2024
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges
(Opinion filed February 16, 2024)
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OPINION*
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PER CURIAM
Pro se litigant Rainy Gibson appeals from the District Court’s decision dismissing
her civil pleading for lack of subject-matter jurisdiction. For the reasons that follow, we
will affirm that judgment.
I.
In September 2023, Gibson filed in the District Court a “Writ of Replevin
Emergency Order to Show Cause” against a towing company, the company’s president,
and two “John Doe tow guy[s].” That pleading raised a “tre[s]pass on chattles [sic]”
claim, alleging that the defendants had unlawfully towed away Gibson’s 2014 Honda
Odyssey and were refusing to return it to her. In view of these allegations, Gibson sought
the return of her vehicle and damages. On October 2, 2023, the District Court, acting sua
sponte, construed Gibson’s pleading as a civil complaint, dismissed it for lack of subject-
matter jurisdiction, and directed the District Court Clerk to close the case. In doing so,
the District Court noted that its dismissal was without prejudice to Gibson’s ability to
pursue her claim in state court. This timely appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 Our review
of the District Court’s decision is plenary. See Great W. Mining & Min. Co. v. Fox
Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010).
1 To the extent that Gibson believes that this appeal arises under 28 U.S.C. § 1292(b), she
is mistaken.

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“Federal courts are courts of limited jurisdiction . . . .” Peace Church Risk
Retention Grp. v. Johnson Controls Fire Prot. LP, 49 F.4th 866, 869 (3d Cir. 2022)
[hereinafter Peace Church]. Pursuant to Federal Rule of Civil Procedure 12(h)(3), if a
federal district court “determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see In re Plavix Mktg., Sales
Pracs. & Prods. Liab. Litig. (No. II), 974 F.3d 228, 232 (3d Cir. 2020) (explaining that
the question of jurisdiction may be raised sua sponte).
The District Court invoked Rule 12(h)(3) here, concluding that dismissal was
warranted because Gibson’s pleading neither presented a federal claim2 nor triggered that
court’s diversity jurisdiction. For diversity jurisdiction to lie, (1) there must be complete
diversity of citizenship amongst the parties, and (2) the amount in controversy must
exceed $75,000. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 375-76 (3d Cir.
2005) (citing 28 U.S.C. § 1332(a)); see also Peace Church, 49 F.4th at 870 (explaining
that “complete diversity” means “that at the time the complaint is filed, no party can be a
citizen of the same state as any opposing party”). The District Court explained that
neither of those requirements was met in this case, for Gibson failed to “plead[] the
existence of complete diversity,” Dist. Ct. Mem. Op. entered Oct. 2, 2023, at 7
[hereinafter Dist. Ct. Op.]; see McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286
2 A federal district court “ha[s] original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Although
Gibson’s pleading mentioned the phrase “due process of law” in passing in her request
for damages, it does not appear that she intended for that pleading to raise a due-process
claim in addition to her trespass claim. She does not argue to the contrary in her
appellate brief.

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(3d Cir. 2006) (“The party asserting diversity jurisdiction bears the burden of proof.”),
and it appeared to a legal certainty that her claim was “for much less than the $75,000
jurisdictional amount,” Dist. Ct. Op. 8 n.6.3
We see no reason to vacate the District Court’s decision. To be sure, the District
Court entered that decision without first giving Gibson an opportunity to show cause why
her pleading should not be dismissed. See Neiderhiser v. Borough of Berwick, 840 F.2d
213, 216 n.6 (3d Cir. 1988) (“The court below should have allowed [plaintiffs] sufficient
time to present evidence or otherwise respond on the issue of jurisdiction before it
determined that none existed.”). But any oversight on the District Court’s part was, at
most, harmless error. See generally 28 U.S.C. § 2111 (requiring a reviewing court to
issue judgment “after an examination of the record without regard to errors or defects
which do not affect the substantial rights of the parties”). A remand for further
proceedings would be futile, for Gibson has done nothing to show, either in the District
Court or here, that she has a potentially viable claim over which the District Court could
exercise jurisdiction.
We have considered the arguments in Gibson’s appellate brief and find none of
them persuasive. Accordingly, and in view of the above, we will affirm the District
3 Gibson alleged that the value of her roughly decade-old vehicle was $100,000, and she
demanded that the defendants pay her $10,000 per day for holding it. But the District
Court “ha[d] no trouble finding that such monetary demands are not made in good faith.”
Dist. Ct. Op. 8 n.6; see Dardovitch v. Haltzman, 190 F.3d 125, 135 (3d Cir. 1999) (“The
amount in controversy is determined from the good faith allegations in the complaint.”).

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Court’s judgment. Gibson’s request for oral argument is denied. To the extent that she
seeks any other relief from us, that relief is denied, too.

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